Search in ‘Judgments and decisions’


Judgment of 3 June 2020 - BVerwG 3 C 21.19 (uploaded on 14 July 2021)

Standing of airport users to challenge an approval of the charging scheme

Headnote

Airport users have standing to bring an action (section 42 (2) VwGO) for the annulment of an approval of a scheme of airport charges (section 19b LuftVG).

Judgment of 20 May 2020 - BVerwG 1 C 34.19 (uploaded on 15 July 2021)

Inadmissibility of an asylum application on the grounds that refugee status was granted in Bulgaria - decision following reference for a preliminary ruling to the CJEU

Headnotes

1. The rejection of an asylum application as inadmissible - at any event since the Integration Act entered into force - can be challenged only by an action for annulment; once a court has annulled an inadmissibility decision, the Federal Office is automatically required to continue the asylum procedure (see BVerwG, judgments of 14 December 2016 - 1 C 4.16 - BVerwGE 157, 18 para. 16 et seqq. and of 1 June 2017 - 1 C 9.17 -).

2. For an inadmissibility decision on the grounds that international protection had already been granted in another Member State to be lawful, in limiting the scope of section 29 (1) no. 2 AsylG in conformity with EU law, requires that the applicant is not expected to face, in the Member State granting such protection, living conditions which amount to inhuman or degrading treatment within the meaning of article 4 CFR (following CJEU, judgment of 19 March 2019 - C-297/17 et al. [ECLI:EU:C:2019:219], Ibrahim et al. - and decision of 13 November 2019 - C-540/17 et al. [ECLI:EU:C:2019:964], Hamed and Omar -).

3. Systemic deficiencies in the asylum procedure in the Member State of (first) recognition and the fact that living conditions there for recognised beneficiaries of protection do not meet the requirements of article 20 et seq. of the (Qualification) Directive 2011/95/EU without causing an infringement of article 4 CFR do not preclude an inadmissibility decision under section 29 (1) no. 2 AsylG.

Judgment of 20 May 2020 - BVerwG 1 C 11.19 (uploaded on 22 June 2021)

Subsidiary protection by reason of poor humanitarian situation in country of origin

Headnotes

1. Inhuman or degrading treatment by reason of a poor humanitarian situation in a country of origin establishes eligibility for subsidiary protection under section 4 (1) second sentence no. 2 AsylG only if such treatment proceeds purposefully from an agent within the meaning of section 4 (3) in conjunction with section 3c AsylG (see BVerwG, decision of 13 February 2019 - 1 B 2.19 - (...) para. 13)

2. In the absence of individual circumstances that increase a threat, indiscriminate violence must attain an especially high level for the civilian population in order to constitute a serious threat to life or physical integrity within the meaning of section 4 (1) second sentence no. 3 AsylG. For such a level, findings as to density of threat are required, comprising not only an approximate quantitative determination of the risk of death and injury, but also an overall assessment of how the foreign national is affected individually (see BVerwG, judgments of 27 April 2010 - 10 C 4.09 - BVerwGE 136, 360 para. 33, of 17 November 2011 - 10 C 13.10 - (...) para. 22 et seq., and of 13 February 2014 - 10 C 6.13 - (...) para. 24, each concerning the predecessor provision of section 60 (7) second sentence AufenthG old version, which has the same wording; BVerwG, decision 8 March 2018 - 1 B 7.18 - (...) para. 3).

Decision of 6 May 2020 - BVerwG 1 C 14.19 (uploaded on 13 July 2021)

Reply to request for information of the CJEU

Headnote

The Federal Administrative Court comments on the request for information of the Court of Justice of the European Union transmitted on 24 April 2020 as stated in the reasons of this decision.

Judgment of 21 April 2020 - BVerwG 1 C 4.19 (uploaded on 2 June 2021)

Inadmissibility of an application for asylum on account of subsidiary protection granted in Bulgaria - final decision following request for a preliminary ruling to the CJEU

Headnotes

1. A safe third country within the meaning of section 29 (1) no. 3 in conjunction with section 26a AsylG - according to the required interpretation in conformity with EU law - can only be a country that is not a Member State of the European Union (see also BVerwG, decision to request a preliminary ruling of 23 March 2017 - 1 C 17.16 - BVerwGE 158, 271 para. 12 et seqq.)

2. For an inadmissibility decision on the grounds that international protection had already been granted in another Member State to be lawful, in limiting the scope of section 29 (1) no. 2 AsylG in conformity with EU law, requires that the applicant is not expected to face, in the Member State granting such protection, living conditions which amount to inhuman or degrading treatment within the meaning of article 4 CFR (following CJEU, judgment of 19 March 2019 - C-297/17 et al. [ECLI:EU:C:2019:219], Ibrahim et al. - and decision of 13 November 2019 - C-540/17 et al. [ECLI:EU:C:2019:964], Hamed and Omar -).

Reduction of the single payment - principle of retroactive application of the more lenient penalty

Headnote

According to the principle of retroactive application of the more lenient penalty, a new, more lenient penalty does not cover an irregularity committed in the past if it was based on a different regulatory context, so that the reassessment does not relate to it due to a lack of sufficient congruence.

Update of a Clean Air Plan and permissibility of driving bans

Headnotes

1. Neither the admissibility nor the merits of an environmental organisation's action for the updating of a clean air plan require the actual existence of an obligation to carry out a strategic environmental assessment.

2. The principle of proportionality claims validity not only with regard to the question of how a traffic ban is to be designed, but also with regard to the preceding question of whether a traffic ban is to be ordered. Whether a traffic ban is deemed to be disproportionate when limit values are more than only very slightly exceeded depends on the circumstance of the individual case.

3. A judicial review of forecasts for clean air plans is not subject to any other requirements than those applying to other forecasts.

4. Clean air plans do not need to hold ready any measures for the case that the forecast of compliance with limit values proves to be too positive and it appears that it will not be realised in the foreseeable future.

5. Section 47 (4a) BImSchG is to be interpreted to the effect that the provision does not oppose traffic bans when nitrogen dioxide values are below 50µg/m³ if - observing the principle of proportionality - they are the only means to keep the exceedance periods of the limit value as short as possible.

Conformity of conjoining a rejection of asylum as manifestly unfounded with a deportation warning under the Gnandi decision of the Court of Justice of the European Union

Headnotes

1. Conjoining a decision to reject an asylum application with a return decision in the form of a deportation warning conforms with the Return Directive 2008/115/EC only if it is ensured that the foreign national is allowed to remain until the relevant remedy against the rejection of the application is resolved, and that this remedy has its full effect (as in BVerwG, judgment of 20 February 2020 - 1 C 1.19 -).

2. A deportation warning issued by the Federal Office together with the decision to reject an application for asylum as (manifestly) unfounded and in which a time period for departure of one week is set, starting to run upon notification of the rejecting decision, does not ensure in full the procedural rights and rights to protection and participation required under EU law.

3. An application for an interim protection pursuant to section 80 (5) VwGO in conjunction with section 36 (3) first sentence AsylG suspends execution of the threatened deportation, pursuant to section 36 (3) eighth sentence AsylG (impediment to execution), but not the executability of that deportation. Section 59 (1) sixth and seventh sentence AufenthG, which relate to the cessation of "executability of the obligation to depart or the deportation warning," are not applicable (mutatis mutandis).

4. Section 36 (3) AsylG cannot be interpreted in conformity with EU law as meaning that an application pursuant to section 80 (5) VwGO results in a suspension of all legal effects of the deportation warning that is limited to the duration of the temporary relief proceedings.

5. Under section 80 (4) first sentence VwGO, the Federal Office may suspend execution of a deportation warning so as to comply, both with the statutory requirement of section 34 (2) first sentence AsylG to conjoin a deportation warning with a decision to reject asylum, and at the same time, with the requirements under EU law for such a conjunction.

6. A violation of the obligation to provide information for the foreign national on the procedural rights and rights of protection and participation to which EU law entitles him or her until the action is resolved does not render a deportation warning unlawful (as in BVerwG, judgment of 20 February 2020 - 1 C 1.19 -).

Judgment of 20 February 2020 - BVerwG 1 C 1.19 (uploaded on 24 March 2021)

Conformity of conjoining a rejection of asylum as simply unfounded with a deportation warning under the Gnandi decision of the Court of Justice of the European Union

Headnotes

1. Conjoining a decision to reject an asylum application with a return decision in the form of a deportation warning conforms with the Return Directive 2008/115/EC only if it is ensured that the foreign national is allowed to remain until the relevant remedy against the rejection of the application is resolved, and that this remedy has its full effect.

2. This is not the case when a rejection of asylum is issued concurrently with a deportation warning setting a time period for departure that begins to run upon notification of the decision, as provided in section 38 (1) first sentence AsylG.

3. A deportation warning issued by the Federal Office together with the decision to reject an application for asylum as (simply) unfounded need not be annulled in court proceedings solely on account of a time period for departure set under section 38 (1) first sentence AsylG, because by virtue of law under section 38 (1) second sentence AsylG, once an action has been brought, that time period does not expire until 30 days after the incontestable conclusion of the asylum procedure, and thus the procedural rights and rights to protection and participation required under EU law are ensured.

4. A violation of the obligation to provide information for the foreign national on the procedural rights and rights of protection and participation to which EU law entitles him or her until the action is resolved does not render a deportation warning unlawful.

Judgment of 13 February 2020 - BVerwG 2 C 9.19 (uploaded on 19 January 2021)

Old-age benefit deduction for prematurely retired professional soldiers

Headnotes

1. The deduction provided for in section 7 (1) first sentence AltGG is compatible with the Basic Law.

2. In cases relating wholly to the situation within one Member State without any indications to EU law (internal cases), questions do not arise as to the conformity with EU law of such a deduction in view of the fundamental freedom of movement for workers pursuant to article 45 TFEU. Insofar, the purely hypothetical possibility of a future exercising or impairment of the right of free movement is not sufficient.

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